As negotiations continue over the fate of the Abyei-region, the outstanding referendum is still the main stumbling block in reaching a final agreement on this issue.

It has to be remembered that in 1905 Abyei was transferred from Northern Bahir el-Ghazal (a Southern territory) into Kordofan. While the Ngok Dinka communities are regarded as permanent inhabitants of the area, other communities, particularly the northern mainly Arab Misseriya communities, have also established overlapping rights in Abyei. The 1972 Addis Ababa Agreement defined the Southern Province as including ‘other areas (in addition to Bahr El Ghazal, Equatoria and Upper Nile) that were culturally and geographically a part of the Southern complex as may be decided by a referendum.` This referendum, which could have determined the status of Abyei, never took place. Together with the attacks inflicted on the Ngok Dinka in late 1970s, these factors pushed the members of the Ngok to become among the first to join the second civil war that began in 1983.

When the civil war ended with the conclusion of the Comprehensive Peace Agreement (CPA), Abyei was accorded a special status. The Abyei Protocol to the CPA stipulates that residents of Abyei were supposed to hold their own separate referendum simultaneously with the referendum in the South to decide whether to join the South or the North. The Protocol on Abyei nevertheless left the definition of ‘residents of Abyei`, who are eligible to vote in the referendum, to the Abyei referendum commission. In December 2009, the Abyei Referendum Act was passed by the National Assembly and signed by Sudan`s President Omar al Bashir. The Act, in line with the CPA, gave the Abyei Referendum Commission the sole authority to decide who was a resident of the Abyei area and who had the right to vote in the Abyei referendum, which was supposed to be held on 9 January 2011. Due to disagreement over the nominees put forward by the SPLA, the commission was never formed.

This disagreement over who is eligible to vote in Abyei referendum has now led to the indefinite postponement of the Abyei referendum. At the centre of this disagreement is a claim from the Missiriya nomads, who seasonally pass through and graze in Abyei from the Muglad-Babanusa region, that they are residents of Abyei and should vote in the Abyei referendum.

According to the Abyei Protocol, the residents of Abyei are ‘the members of the Ngok Dinka community and other Sudanese residing in the area`. With respect to the Misseriya, the protocol provides that they (Misseriya) and other nomadic peoples ‘retain their traditional rights to graze cattle and move across the territory of Abyei.` Needless to say, the claim of the Misseriya to vote in the Abyei referendum goes the traditional rights thus recognized. This dispute over eligibility for voting also relates to issues surrounding the determination of the demarcation of the Abyei boundaries, land rights particularly relating to the Misseriya and finally, security arrangements.

The resultant failure to implement the Abyei referendum has fuelled insecurity and anxiety on both sides of the political divide. A clear manifestation of this failure was the recent violence that broke out in this bitterly contested territory. On 19 May 2011 a member of the SPLA attacked a UN convoy that was transporting the Joint Integrated Units of the Sudan Armed Forces (SAF). According to the Government of Sudan (GoS), the attack resulted in the death of 22 SAF personnel. The SAF adopted a heavy-handed response. On 20 May, it launched ground and air attacks in Abyei using heavy artillery and tanks. SAF aircraft also bombed at least four villages in Abyei. The following day, the GoS declared that the SAF had taken control of Abyei and inflicted heavy losses on ‘the enemy`. In a sign of Northern assertion of possession of Abyei, President al-Bashir issued two decrees dissolving Abyei`s administrative council and firing its head, his vice president and the directors of the five departments within the council.

Although people are believed to have died in the course of the forcible seizure of Abyei, there are no verified casualty figures. Some observers have reported that more than 20,000 people have fled the town of Abyei. This situation also offered an opportunity for Khartoum-aligned armed Misseriya herdsmen to avenge against the restrictions imposed on their movement by burning and looting villages in Abyei town. The Government of South Sudan (GoSS), which condemned the military takeover, announced that it would not respond militarily opting instead to focus on finalising the preparations for the independence of the South on 9 July 2011.

Despite the regrettable and criminal nature of the attack on the UN convoys transporting SAF soldiers, it is doubtful that the response from the GoS can be justified. The military take-over of Abyei by the SAF is a breach of the CPA and the recent Kadugli agreement between the ruling National Congress Party (NCP) and the SPLM on security arrangements in Abyei. According to the CPA and the Kadugli agreement, the two sides are committed to administer Abyei jointly and ensure law and order through the Joint Integrated Units that are formed by personnel drawn from the SPLA and SAF. Under the Kadugli agreement signed in January 2011 they also committed to withdraw all their respective forces from Abyei. The dissolution of the Abyei administration through a unilateral act by President Bashir is also a breach of the Abyei Protocol of 2005, which vests the power over the Abyei administrative council in the Presidency. Although understandable, Bashir`s unilateral decision nevertheless breached this stipulation since there was no consultation with GoSS President Salva Kiir, who is a member of the Presidency.

It is important to note that the NCP is not alone in unilaterally asserting its claim over Abyei in a manner that jeopardizes the right of the residents of Abyei to determine their future status through a referendum. The draft Constitution of South Sudan being discussed by the GoSS included Abyei as part of the territory of Southern Sudan. Indeed, the forcible takeover of Abyei can be taken as representing the NCP`s strong rejection of the draft constitution.

Unilateral action by either of the parties cannot resolve the Abyei dispute. Neither would any political compromise that undermines the right of the Abyei people to decide their political future by referendum. The only way that the Abyei dispute can be permanently and legitimately settled is by implementing the Abyei referendum. This has to be implemented within the framework of the Abyei Protocol and the decision of the Permanent Court of Arbitration (PCA).

In its 2009 ruling, the PCA identified a territorial definition of Abyei that is largely confined to the area inhabited by the Ngok Dinka. The PCA also held that under international law traditional rights have usually been deemed to remain unaffected by any territorial delimitation. It is imperative that, as stipulated in the CPA and further established by the PCA, the implementation of the Abyei referendum be pursued in a manner that fully recognizes and guarantees the rights of the Misseriya with respect to their traditional rights in terms of secure access to pasture and freedom of movement in and through Abyei.

The international community should insist that this is the only and best way for ending the deadlock over Abyei. The international community also needs to establish a more unified and coherent approach than it has thus far adopted. Additionally, in monitoring the implementation of both the referendum and most importantly the mechanisms for institutionalizing the rights of the Misseriya, the international community, including neighbouring countries, stands to make a significant contribution to conclusively resolve the Abyei dispute.